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As it was on this basis that the court reached a clear conclusion that, having regard to the seriousness of the offences charged, she was not entitled to be discharged under section 87 of the 2003 Act, it is necessary to look at her case more closely to see whether the equivalent conclusion with regard to the Scottish ... |
There is no doubt where the childrens best interests lie. Ratio |
Their best interests must be to continue to live with their mother. Ratio |
They will be deprived of her care and guidance if she is taken away from them, and it seems likely that the long term effects of a prolonged separation of the magnitude that is in prospect in this case will be profound. Ratio |
She has, of course, been separated from them before. Ratio |
She has already spent two periods in remand in connection with this case, from 31 January 2007 to 31 August 2007 and from 29 July 2011 to 12 August 2011. Ratio |
On both occasions her mother, with the help of other family members and friends, was able to keep the family together. Ratio |
Whether this will be possible if Mrs H were to be extradited is quite uncertain. Ratio |
The sheriff does not seem to have been unduly troubled on this point: see paras 37-38, above. Ratio |
But there must be a risk that the children will be taken into care and, if that happens, that they will no longer be able to live together. Ratio |
Resuming family life together after a prolonged separation is likely to be very difficult. Ratio |
The gravity of the situation is compounded by the fact that the children are, for all practical purposes, now fatherless. Ratio |
On the other hand there is no escape from the fact that these are criminal proceedings and that the crimes alleged, which were persisted in over a substantial period, are very serious. Ratio |
The interests of justice must be given effect to. Ratio |
The treaty obligation requires that Mrs H be sent for trial in the United States, and it points to the conclusion that it is in that forum that her participation in the alleged crimes must be determined. Ratio |
It is well established that extradition may amount to a justified interference under article 8(2) if it is in accordance with the law, is pursuing the aims of the prevention of disorder and crime and is necessary in a democratic society: Launder v United Kingdom (1997) 25 EHRR CD67, para 3; Aronica v Germany (Applicati... |
The treaty obligation points to the conclusion too that if there are grounds for leniency, or for mitigation of sentence on the grounds of her family circumstances, it is for the authorities in the United States, not for this court, to make that assessment. PRE |
The Strasbourg court has repeatedly said that it will only be in exceptional circumstances that an applicants private or family life in a contracting state will outweigh the legitimate aim pursued by his or her extradition: King v United Kingdom, para 29; Babar Ahmad v United Kingdom (2010) 51 EHRR SE97, para 172. PRE |
In Nunez v Norway (Application No 55597/09) (unreported) given 28 June 2011, the article 8 right was sufficient to tip the balance in a immigration case. PRE |
But the fact that the court has not yet decided any extradition case in favour of the applicant, even where those to be extradited are the parents of young children, indicates how high the bar against refusing a request for extradition has been set. PRE |
The best interests of the children do however suggest that the High Court of Justiciary was wrong to hold, as Lord Reed indicated in para 101 of his opinion, that it was unnecessary to consider the possibility of a prosecution in this country. Ratio |
It will not be necessary to do this in every case. Ratio |
But I would make an exception here. Ratio |
The extradition request extends to both parents, and there are six children, four of whom are under the age of ten. Ratio |
The best interests of the children suggest that we should be satisfied that the interests of justice cannot be served equally well by prosecuting the parents in this country. Ratio |
It is to that issue that I now turn. Ratio |
Prosecution in this country Ratio |
It was submitted for Mr H that, although there is no reported case where this argument has been successful, the logical conclusion is that, where a domestic prosecution is an option, it ought to be the preferred one and that where the best interests of children were involved the obligation to adopt the least onerous me... |
The same points were made on behalf of Mrs H too. ARG |
Reference was made to R (Bermingham) v Director of the Serious Fraud Office [2006] EWHC 200 (Admin), [2007] QB 727, para 121 where Laws LJ said that there might be an instance where such a possibility might tip the balance of judgment in favour of a conclusion that a persons extradition would amount to a disproportiona... |
In King v United Kingdom, para 29, the Strasbourg court observed that considerations as to whether prosecution exists as an alternative may have a bearing on whether the extradition would be in violation of one of the rights guaranteed by the Convention. PRE |
But in Babar Ahmad v United Kingdom, para 175 the Court, recalling that there was no right in the Convention not to be extradited and that, by implication, there was no right to be prosecuted in a particular jurisdiction, said that it was not for the Court to adjudicate on the natural forum for prosecution. PRE |
Its only task was to determine whether that extradition would be compatible with the applicants Convention rights. PRE |
In Bermingham, para 126 Laws LJ said that he wished to underline the observations of Lord Hardie, sitting in the Outer House, in Wright v The Scottish Ministers 2004 SLT 823, para 28 where he said: Extradition does not and should not depend upon the ability or otherwise of the requested state to undertake its own inves... |
Such an approach would involve unnecessary duplication of effort, would result in additional delays in the prosecution of suspected criminals and would have an adverse effect upon international relations and international co-operation in the prosecution of serious crime. PRE |
When Wright reached the Inner House the extreme submission that extradition would be proportionate only in circumstances where it was demonstrated that a prosecution in the jurisdiction where the subject lay would be impossible was, not surprisingly, rejected: [2005] CSIH 40, 2005 1 SC 453. PRE |
The Extra Division also said in para 67 that it found itself in complete agreement with the observations of the Lord Ordinary. PRE |
In the Bermingham case the Divisional Court had little difficulty in rejecting the argument that the defendants should be tried in this country as the case against them had very substantial connections with the United States and was perfectly properly triable there: para 125. PRE |
In King too the Strasbourg court was satisfied that the United Kingdom authorities had given convincing reasons as to why they regarded it as appropriate for any prosecution to take place in Australia, not the least that the applicants co-accused had all been tried there. PRE |
In Norris v Government of the United States of America (No 2) [2010] 2 AC 487, para 67, having noted in para 66 that there had recently been a string of cases in which the extraditee had argued that he ought to be prosecuted in this jurisdiction of which Bermingham was one, Lord Phillips said: Extradition proceedings s... |
Rarely, if ever, on an issue of proportionality, could the possibility of bringing criminal proceedings in this jurisdiction be capable of tipping the scales against extradition in accordance with this countrys treaty obligations. PRE |
Unless the judge reaches the conclusion that the scales are finely balanced he should not enter into an inquiry as to the possibility of prosecution in this country. PRE |
In a postscript to his judgment which he wrote in the light of the admissibility decision in King he said that he remained of the view that rarely, if ever, was the possibility of prosecution as an alternative to extradition likely in practice to tilt the scales against extradition: para 86. PRE |
These remarks had the unanimous support of all the other members of the court. PRE |
On the other hand cases where both parents of young children are at risk of being extradited may be regarded as being of an exceptional character, so as to raise the need to consider the possibility of a prosecution in this country a bit higher than the bar which the observations in Norris have set for it. PRE |
The issue remains one of proportionality. PRE |
The more compelling the interests of the children the more important it will be for the alternatives to extradition, if there are any, to be carefully examined and brought into the balance to see if they carry any weight. PRE |
This is not to diminish the importance to be given to this countrys treaty obligations. PRE |
Rather it is to recognise that in cases involving the separation of parents from young children there is another powerful factor which is likely to make the scales more finely balanced than they would be if the children were not there. PRE |
In its Review of the United Kingdoms Extradition Arrangements, 30 September 2011, para 6.17 the Review Panel chaired by Sir Scott Baker said, with regard to the forum bars in sections 19B and 83A inserted into Parts 1 and 2 of the 2003 Act by paragraphs 4(2) and 5(2) of Schedule 13 to the Police and Justice Act 2006 wh... |
There is no statutory requirement to go that far in this case, and Mr Wolffe QC for the Lord Advocate said that the case had not been investigated with a view to prosecution in Scotland. Ratio |
But we do not lack information about the view that was taken about the possibility of prosecution in England. Ratio |
Advice on the jurisdictional issues that had arisen in connection with the investigation of the appellants activities wasgiven by the Crown Prosecution Service in 2006 following their move to Scotland earlier that year. Ratio |
Section 20 of the Misuse of Drugs Act 1971 provides that a person commits an offence if in the United Kingdom he assists in or induces the commission in any place outside the United Kingdom of an offence punishable under the provisions of a corresponding law in force in that place. Ratio |
In a note dated 5 May 2006 the CPS advised that, where offending had taken place both in England and Scotland, it would be possible to charge the suspects either with a number offences under section 20 with respect the supply of red phosphorus to the United States or with an over-arching conspiracy covering the whole o... |
In a further note dated 4 April 2007 consideration was given to the possibility of prosecuting for these offences in England leaving it to the Scottish authorities to prosecute offences occurring within their jurisdiction themselves, of prosecuting all the offences in the English courts or of allowing the United States... |
It was pointed out that a large number of witnesses would have to attend from the United States if the complete scale of the appellants involvement in drug making activities there was to be placed before the court, whereas the number of witnesses who would need to travel for a trial in that country would be small. Rati... |
A court in the United States would be best placed to deal with the legal issues, and it was appropriate that the appellants should be dealt with in the jurisdiction where the effect of their crimes was felt. Ratio |
The advice was that the public interest was best served by the police assisting, in so far as it was proper and possible, in the extradition of the appellants to stand trial in the United States. Ratio |
There is no indication that the best interests of the children were taken into account in that assessment, although regard was had to the considerations mentioned in R (Bermingham) v Director of the Serious Fraud Office. Ratio |
I would however accept Mr Wolffes submission that the scales are not finely balanced in this case and that taking account of the best interests of the children does not change the analysis. Ratio |
He accepted, of course, that regard should be had to article 3.1 of the UNCRC, which provides that the best interests of the child shall be a primary consideration. Ratio |
But those interests must be assessed in the context of this countrys treaty obligations in the suppression of trade in narcotic drugs across international borders (UN Convention against Illicit Trading in Narcotic Drugs and Psychotropic Substances 1988). Ratio |
There are good reasons too for looking to the place of the mischief as the place where the prosecution should be brought: Office of the Kings Prosecutor, Brussels v Cando Armas [2005] UKHL 67, [2006] 2 AC 1, para 36-40; Clements v HM Advocate 1991 JC 62, p 71. Ratio |
The United States has a substantial interest in trying the appellants in its own courts and there are strong practical reasons for concluding that that country, where most of the witnesses reside and the degree of the criminality involved is best assessed, is the proper place for them to be tried. Ratio |
As Mr Wolffe points out, the very fact that the basis for a prosecution in this country would appear to be section 20 of the Misuse of Drugs Act 1971 emphasises that the crimes which the appellants are alleged to have committed are really US crimes. Ratio |
I would hold that, taking all these considerations into account, it would not be appropriate for the appellants to be tried here. Ratio |
Nor would it be acceptable for Mrs H not be prosecuted at all for the crimes with which she has been charged. Ratio |
It would not, of course, be sensible to prosecute Mrs H here while sending Mr H to the United States for prosecution in that country. Ratio |
So their cases must stand or fall together on this point. Ratio |
The proper forum in which the prosecution should be brought is in the United States of America. Ratio |
Conclusion RPC |
As I have already said, I would refuse Mr Hs appeal. RPC |
I am satisfied that the Scottish Ministers order that he must be extradited was not incompatible with his Convention rights. Ratio |
For obvious reasons the balance is not so easy to strike in the case of Mrs H. But I have come to the conclusion that the best interests of the children, even when weighed together with her own article 8 right to respect for her family life with them, are not strong enough to overcome the overwhelming public interest i... |
I would hold that it was not incompatible with her Convention rights for the Scottish Ministers to order her extradition, and I would refuse her appeal also. Ratio |
I would add one further comment. Ratio |
There have been a number of recent cases, to which much publicity has been given, which have tended to shake public confidence in the current arrangements with the United States. Ratio |
I would not regard this case as falling into that category. Ratio |
Although the conduct that has been alleged against the appellants took place in this country, it is plain that it was in the United States that it had its effect. Ratio |
It cannot be said that the appellants have not had proper notice of the crimes with which they have been charged. Ratio |
Nor, in view of the steps that have been taken here to gather evidence with a view to a possible prosecution in England, does it appear that the allegations that have been made against them are entirely without substance. Ratio |
What is happening in this case is a tragedy, especially for the children. Ratio |
But this is not a ground on which the extradition arrangements which must now be put into effect can properly be criticised. Ratio |
I agree, for the reasons which Lord Hope has given, that this Court is competent to decide these appeals. RPC |
I also agree, for the reasons given in his judgment and the judgments of Lord Judge and Lord Wilson in F-K v Polish Judicial Authority and R (HH and PH) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 delivered today, that these appeals should be dismissed. RPC |
Although it could have been desirable to have the point argued adversarially, I agree with Lord Hope for the reasons he gives that this appeal is competent. RPC |
In the present case, and for the reasons given by Lord Hope in his paras 50 to 72, I also conclude that the article 8 rights of the children are on the facts of this case outweighed by the pressing public interest in giving effect to the extradition requests received from the United States of America in respect of both... |
I have read the judgment of Lord Hope. RPC |
I agree for the reasons that he has given that this Court is competent to decide these appeals, and for the reasons in his judgment and my own judgment in F-K v Polish Judicial Authority and R (HH and PH) v Deputy Prosecutor of the Italian Republic, Genoa delivered today that these appeals should be dismissed. RPC |
I agree, for the reasons which Lord Hope has given, that this court is competent to decide these appeals. RPC |
I also agree, for the reasons given in his judgment and in my own judgment in F-K v Polish Judicial Authority and R (HH and PH) v Deputy Prosecutor of the Italian Republic, Genoa delivered today, that these appeals should be dismissed. RPC |
These three appeals raise questions as to the circumstances in which the Parole Board (the board) is required to hold an oral hearing. Ratio |
One of the appeals (that of the appellant Osborn) concerns a determinate sentence prisoner who was released on licence but then recalled to custody. Ratio |
The other appeals (those of the appellants Booth and Reilly) concern indeterminate sentence prisoners who have served their minimum terms. Ratio |
It may be helpful to summarise at the outset the conclusions which I have reached. Ratio |
i) In order to comply with common law standards of procedural fairness, the board should hold an oral hearing before determining an application for release, or for a transfer to open conditions, whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and the importance of what is... |
By doing so the board will also fulfil its duty under section 6(1) of the Human Rights Act 1998 to act compatibly with article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in circumstances where that article is engaged. Ratio |
ii) It is impossible to define exhaustively the circumstances in which an oral hearing will be necessary, but such circumstances will often include the following: a) Where facts which appear to the board to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard... |
The board should guard against any tendency to underestimate the importance of issues of fact which may be disputed or open to explanation or mitigation. Ratio |
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